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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1252


Filed: 4 September 2007


    v.                        Halifax County                                      Nos. 02 CRS 56460, 57979

    Appeal by defendant from judgment entered 8 May 2006 by Judge J. Richard Parker in Halifax County Superior Court. Heard in the Court of Appeals 20 August 2007.

    Roy Cooper, Attorney General, by Christopher H. Wilson, Assistant Attorney General, for the State.

    William D. Spence for defendant-appellant.

    MARTIN, Chief Judge.

    Donte A. Peebles (“defendant”) appeals from an order revoking his 24-month probation and activating his 180-day suspended prison sentence for the willful violation of certain probationary conditions. We affirm the trial court's order.
    The evidence presented at the probation revocation hearing tended to show that defendant pled guilty to and was convicted on 13 April 2005 of four instances of writing a worthless check and one charge of driving while license revoked (“DWLR”). Defendant was sentenced to a 60-day prison term for the worthless check convictions and a 120-day prison term for the DWLR, to be served consecutively. In lieu of imprisonment, the trial court suspended the original sentence for a 24-month probationary period.     On 5 February 2006, defendant's probation officer filed a violation report for each conviction, alleging that defendant willfully violated several probationary conditions. The reports alleged that defendant failed to attend required appointments with his probation officer on 1 June 2005, 9 August 2005, and 6 September 2005, in violation of the probationary condition that defendant “[r]eport as directed by the [c]ourt or the probation officer to the officer at reasonable times and places.” The report also alleged that defendant had a total of over $300 in arrears between his two restitution payments as well as his monthly probation supervision fees, in violation of the condition that he pay both restitution and supervision fees monthly to the court. Finally, the report alleged that defendant had been convicted of assault on a female, violating the probation condition that the defendant “[c]ommit no criminal offense.” Defendant was served with a copy of the violation report and noticed to appear in Halifax County Superior Court for a probation revocation hearing on 8 May 2006.
    At the hearing, the trial court explained to defendant that he was charged with violating the conditions of his probation and that the hearing could lead to imprisonment for the term of his originally suspended sentence. The court also advised defendant that he had the right to be represented by an attorney, as well as the right to represent himself. When asked what defendant intended to do for representation, he claimed that he did not need an attorney. The court again asked if defendant was going torepresent himself, to which defendant responded affirmatively and signed a written waiver of his right to counsel. The hearing then proceeded with defendant representing himself pro se.
    During the proceedings, defendant admitted to willfully committing each of the alleged violations, but argued that he had a lawful excuse for his noncompliance. First, defendant contended that while he did commit an assault on his wife, the two were currently on good terms and had a strong marriage. He also asserted that his failure to pay in accordance with the court's order was not willful because of his financial obligations to his family. Finally, defendant argued that he failed to attend meetings with his probation officer because of work, but that he had rescheduled the missed appointments. The trial court found that defendant had willfully violated the terms of probation and activated the suspended sentence.

    Defendant first argues that the trial court failed to conduct a sufficient inquiry as to whether defendant knowingly, intelligently, and voluntarily waived his right to counsel in violation of N.C.G.S. § 15A-1242(2). Defendant raises a question of law, which we review de novo. In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (“Questions of law receive de novo review . . . .”); see, e.g., State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 804-05 (1986) (conducting de novo review of the trial court's compliance with N.C.G.S. § 15A-1242); State v. Evans, 153 N.C. App. 313, 316,569 S.E.2d 673, 675 (2002) (reviewing de novo the trial court's compliance with the requirements of N.C.G.S. § 15A-1242).
    A defendant can lawfully waive representation only when the court has determined that the defendant “clearly and unequivocally” expressed his desire to waive the right to counsel and that the decision was made knowingly, intelligently, and voluntarily. Evans, 153 N.C. App. at 315, 569 S.E.2d at 675 (quoting State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994)). To sufficiently inquire into whether a defendant knowingly, intelligently, and voluntarily waived his right to counsel, a court must meet all three requirements of N.C.G.S. § 15A-1242. Id. The statute provides:
            A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
            (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
            (2) Understands and appreciates the consequences of this decision; and
            (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242 (2005). Because the trial court complied with the dictates of this statute in allowing defendant to waive his right to counsel, the trial court did not err by allowing the defendant to proceed pro se.
    In accordance with § 15A-1242, defendant was informed of his right to counsel, the consequences of a waiver of that right, and the nature of the charges and the possible punishments. At thehearing, the trial court explained to defendant that he was charged with violating his probation and that the hearing could lead to imprisonment for the term of his original sentencing. In doing so, the trial court clarified the “nature of the charges and proceedings and the range of permissible punishments,” pursuant to N.C.G.S. § 15A-1242(3). The trial court also informed defendant that waiving his right to counsel meant he would be representing himself. This indicates that the trial court made an inquiry consistent with § 15A-1242(2) by establishing that defendant understood and appreciated the consequences of his waiver. Finally, the court explained that defendant had a right to legal representation or that defendant could represent himself, which satisfies § 15A-1242(1). We conclude the trial court properly determined that defendant made his waiver knowingly, intelligently, and voluntarily. Therefore, defendant's assignment of error is overruled.
    Defendant next argues that the trial court abused its discretion by revoking probation and activating his original sentence. “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). In order to prove an abuse of discretion, defendant must show that the trial court's ruling was “so arbitrary that it could not have been the result of a reasoned decision.” State v. Syriani, 333N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993).
    In the present case, the State alleged that defendant violated his probation by (1) committing assault, (2) failing to pay restitution and court fees, and (3) failing to meet with his probation officer for three scheduled appointments. Although defendant admitted to willfully violating each condition, he argues that the violations were lawfully excused. At the hearing and in his brief to this Court, defendant claimed that (1) although he was convicted for assault, he and the victim were presently on good terms and there was a possibility of the assault conviction being appealed, (2) he failed to pay restitution and supervision fees because of his financial obligation to his family, and (3) he missed probation appointments because of his conflicting work schedule.
    While defendant claims a lawful excuse for each violation, “[t]he breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence.” State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). If defendant offered evidence tending to prove a lawful excuse for the violation, the trial judge has a duty to make findings of fact that clearly show that defendant's evidence was considered and evaluated. State v. Sellars, 61 N.C. App. 558, 561, 301 S.E.2d 105, 107 (1983). If the trial judge properly considered and evaluated defendant's evidence of just one of the alleged lawfulexcuses and found a violation, then activation of the original sentence is within the court's discretion.
    The current status of defendant's relationship with his victim is wholly irrelevant to the issue of whether defendant violated his probation by committing a criminal offense. The present relationship between an assailant and victim does not negate the fact that an assault was committed. Moreover, probation may be revoked for a probationer's commission of a crime, notwithstanding the pendency of an appeal of the conviction. State v. Ginn, 59 N.C. App. 363, 379-80, 296 S.E.2d 825, 835-36, disc. review denied, 307 N.C. 271, 299 S.E.2d 217 (1982).
    Defendant also contends that his failure to pay restitution and supervision fees was not willful because his daughters were in school, he had bills to pay, and he had an obligation to financially support his family. Defendant offered no other evidence to support his excuse.
    In State v. Jones, this Court held that the mere assertion of unemployment, without further evidence to support his inability to pay the judgment, was not a sufficient lawful excuse and that the trial court properly revoked probation in the absence of sufficient evidence to establish a lawful excuse. State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d 195, 197 (1985). In the present case, other than the mere assertion of financial obligations to his family, defendant presented no other evidence to support his claim to a lawful excuse.     Either of the violations discussed above is sufficient to affirm the trial court's decision because the violation of any single condition of probation will support revoking probation and activating a suspended sentence. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). There was no abuse of discretion because the trial court properly evaluated and considered the defendant's claims of lawful excuse. The trial court's decision to revoke probation and activate defendant's suspended sentence is thus affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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